State v. James W. Robinson (070556)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State of New Jersey v. James W. Robinson (A-20-12) (070556)

Argued September 9, 2013 – Decided June 5, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimousCourt.

In this appeal, the Court considers whether a trial court may impose a mandatory extended term and a
discretionary extended term in the same sentencing proceeding.

In late 2003, defendant James W. Robinson sold three bags of crack cocaine to an undercover officer.
Police later learned defendant also was selling from his apartment. Following execution of a search warrant and
discovery of drugs and drug paraphernalia in the apartment, defendant was indicted for third-degree possession of a
controlled dangerous substance (CDS) with intent to distribute (count one), second-degree possession of CDS with
intent to distribute within 500 feet of public property (count two), third-degree possession of CDS (count three), and
third-degree possession of CDS with intent to distribute (count four). A jury convicted defendant on all counts.

At the time of the sentencing hearing, defendant had a lengthy criminal history, including a prior drug
conviction in 1994, and he was incarcerated on a 2002 conviction for criminal restraint. The State moved for a
mandatory extended term based on the 1994 conviction. The trial court merged count one into count two, and count
three into count four, and sentenced defendant to two mandatory extended terms pursuant to N.J.S.A. 2C:43-6(f), as
a repeat drug offender. On count two, defendant was sentenced to a mandatory extended term of fifteen years with a
five-year period of parole ineligibility, and, on count four, he was sentenced to a concurrent mandatory extended
term of seven years with a three-year period of parole ineligibility.

Following an appeal regarding execution of the search warrant, defendant moved in the trial court for a
reduction of his sentence, arguing that multiple extended terms violate N.J.S.A. 2C:44-5(a)(2). In light of the State’s
concession that defendant’s conviction on count two was not a predicate offense for a mandatory extended term, the
trial court treated defendant’s motion as one to correct an illegal sentence. It determined that defendant qualified as
a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and imposed a discretionary persistent offender extended term
on count two of fifteen years with a five-year period of parole ineligibility. Since the trial court did not alter the
mandatory extended term on count four, the aggregate sentence also was unchanged.

Defendant appealed, arguing that the revised sentence was illegal because it violated the statutory bar on
the imposition of multiple extended terms under N.J.S.A. 2C:44-5(a)(2). The Appellate Division affirmed
defendant’s sentence, finding that the prohibition on multiple extended terms applies only to discretionary extended
terms and not mandatory terms. The Court granted defendant’s petition for certification. 212 N.J. 455 (2012).

HELD: N.J.S.A. 2C:44-5(a)(2) bars the imposition of a mandatory extended term and a discretionary extended
term in the same sentencing proceeding.

1. Appellate review of a sentence is guided by the abuse of discretion standard. Reviewing courts must first
determine whether the sentence violates sentencing guidelines and legislative policies, a question of law which is
reviewed de novo. Thus, the Court reviews the interpretation and application of N.J.S.A. 2C:44-5(a)(2) de novo.
The goal of statutory interpretation is to effectuate the intent of the Legislature, and the plain language chosen by the
Legislature is the best indicator of its intent. When the language is clear and leads to a result that is consistent with
statutory objectives and related provisions, the law is applied as written. When the language suggests more than one
reasonable interpretation, courts will consult other statutory construction tools, as well as extrinsic aids. (pp. 11-12)

2. Defendant’s present conviction and criminal history qualify him for imposition of a discretionary extended term
as a persistent offender under N.J.S.A. 2C:44-3(a) and a mandatory extended term under N.J.S.A. 2C:43-6(f).
N.J.S.A. 2C:44-5(a)(2) provides, in relevant part, that when multiple sentences are imposed on a defendant for more
than one offense, “[n]ot more than one sentence for an extended term shall be imposed.” The Court agrees with its
previous statement in State v. Hudson, 209 N.J. 513 (2012), which considered the validity of multiple extended
terms imposed at different times, that the statute “states, with unmistakable clarity,” that no more than one extended
term sentence shall be imposed when sentencing a defendant for multiple offenses during a single proceeding. The
Court finds that the unambiguous language of N.J.S.A. 2C:44-5(a)(2) “expressly and unequivocally” prohibits the
imposition of multiple extended term sentences in a single sentencing proceeding. (pp. 12-13)

3. In considering whether its interpretation is consistent with legislative objectives, the Court explains that N.J.S.A.
2C:44-5 was enacted in 1978 and is based on a section of the Model Penal Code (MPC), thereby permitting the
Court to consider the MPC and any relevant commentary during its analysis of the statutory provision. To that end,
the Court notes that, with respect to the authority to impose multiple extended terms, the MPC Commentaries
observe that ordinary terms and certain enhanced terms should sufficiently address multiple offenders. Moreover,
the flexibility afforded within the extended term maximum allows courts to achieve any desired level of additional
deterrence, as well as any preventive or incapacitative objective. Under N.J.S.A. 2C:44-3, New Jersey’s Criminal
Code permits a sentencing judge, on a prosecutor’s request, to impose a discretionary extended term. In contrast,
some extended terms are mandatory, including, upon application of the prosecutor, those for repeat offenders of
certain designated drug crimes. N.J.S.A. 2C:43-6(f). Barring more than one extended term when a judge is
fashioning a sentence for multiple offenses in a single proceeding is consistent with the Code’s goal of promoting
uniformity of sentencing throughout the State. Thus, the Court concludes that the prohibition against multiple
extended terms directed by the plain language of N.J.S.A. 2C:44-5(a)(2) is consistent not only with the overarching
legislative objective of promoting sentencing uniformity and predictability but also with the context of other
provisions governing extended term and mandatory minimum sentencing. (pp. 14-19)

4. The Court notes that a specific statute, such as N.J.S.A. 2C:43-6(f), requiring the imposition of mandatory
extended terms for certain repeat drug offenders, generally overrides a general statute, such as N.J.S.A. 2C:44-
5(a)(2) . However, the fact that one of the extended terms imposed here was mandatory does not change the Court’s
conclusion that N.J.S.A. 2C:44-5(a)(2) prohibits the imposition of multiple extended terms during the same
sentencing proceeding. The Court explains that N.J.S.A. 2C:43-6(f) permits the prosecutor to waive imposition of
the extended term by declining to request it. If the mandatory extended term is not requested, the sentencing court
must impose an ordinary term. Granting the prosecutor this power permits the State to comply with the
unambiguous legislative directive in N.J.S.A. 2C:44-5(a)(2) prohibiting the imposition of multiple extended terms.
(pp. 19-20)

5. Since N.J.S.A. 2C:44-5(a)(2) bars the imposition of a discretionary extended term and a mandatory extended
term in the same sentencing proceeding, the sentence imposed on defendant is illegal. This disposition requires
vacation of defendant’s sentence and remand for imposition of a new one following an entirely new sentencing
proceeding. Under the circumstances here, where the sentencing court has twice imposed an illegal sentence, the
sentence should be approached anew. At that time, the State may elect whether to seek an extended term on count
two or four. If the State chooses to forego the mandatory extended term on count four and to request a discretionary
extended term on count two, defendant may argue against imposition of such a term. Likewise, the State may
reserve the right to request a mandatory extended term if its application for a discretionary extended term is denied.
Both parties also may argue for or against imposition of consecutive terms. The trial court must identify the
appropriate aggravating and mitigating factors and explain its reasons for the imposition of any extended term, as
well as for imposition of consecutive or concurrent terms. (pp. 20-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for resentencing in accordance with the Court’s opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and PATTERSON join in
JUDGE CUFF’s opinion. JUDGE RODRÍGUEZ (temporarily assigned) did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-20 September Term 2012
070556

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES W. ROBINSON,

Defendant-Appellant.

Argued September 9, 2013 – Decided June 5, 2014

On certification to the Superior Court,
Appellate Division.

Stephen P. Hunter, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).

Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

In this appeal we consider extended term sentencing in a

context not previously considered by the Court. In earlier

opinions, the Court addressed the distinction between a

discretionary or persistent offender extended term and a

mandatory extended term, State v. Martin, 110 N.J. 10, 16

(1988), the need for the prosecutor to provide notice to the
defendant of his or her intention to seek an extended term,

State v. Thomas, 195 N.J. 431, 436 (2008), and the analysis the

trial court must employ in its decision to impose an extended

term, State v. Thomas, 188 N.J. 137, 138 (2006) (addressing

mandatory repeat drug offender extended term sentences); State

v. Pierce, 188 N.J. 155, 158 (2006) (addressing discretionary

extended term sentences).

This appeal requires the Court to address N.J.S.A. 2C:44-

5(a)(2), which limits the number of extended terms that may be

imposed in a single sentence. A defendant may be sentenced to

multiple mandatory extended terms in the same proceeding. State

v. Connell, 208 N.J. Super. 688, 697 (App. Div. 1986)

(permitting multiple Graves Act mandatory terms of parole

ineligibility in same sentence). On the other hand, N.J.S.A.

2C:44-5(b)(1) prevents a trial court from imposing a

discretionary extended term for an offense when the defendant is

already imprisoned on another extended term. State v. Hudson,

209 N.J. 513, 517 (2012). Here, we address whether a trial

judge may impose a mandatory extended term and a discretionary

extended term in the same sentencing proceeding.

This is the second time defendant has appeared before this

Court concerning his conviction for two drug transactions in

December 2003 and January 2004. In State v. Robinson, 200 N.J.

1, 18 (2009), the Court held that a twenty- to thirty-second

2
delay between the police knocking and announcing their presence

to execute a search warrant and the forcible entry into

defendant’s apartment was not unreasonable.

Defendant then filed a motion to reduce his fifteen-year

term of imprisonment subject to a five-year period of parole

ineligibility. The trial court had imposed two mandatory

extended terms on one count of second-degree distribution of a

controlled dangerous substance (CDS) within 500 feet of public

property and one count of third-degree possession of CDS with

intent to distribute. Treating the motion as an application to

correct an illegal sentence, the trial court held that the

mandatory repeat drug offender extended term should not have

been imposed on the second-degree offense. The trial court then

imposed a discretionary persistent offender extended term

sentence of fifteen years’ imprisonment subject to a five-year

period of parole ineligibility on the second-degree offense and

a mandatory repeat drug offender extended term of seven years’

imprisonment subject to a three-year period of parole

ineligibility on the third-degree offense. Defendant maintains

that this sentence also is illegal.

We hold that the plain language of N.J.S.A. 2C:44-5(a)(2)

bars the imposition of a discretionary extended term when the

prosecutor has requested one and the trial court is obliged to

impose a mandatory extended term on another offense in the same

3
proceeding. The statutes governing sentencing provide

sufficient flexibility to fashion an appropriate sentence to

address the repeat offender without resorting to multiple

extended terms. To that end, when a defendant is eligible for

imposition of both a discretionary extended term and a mandatory

extended term, the State may elect which extended term it wishes

to pursue. We, therefore, reverse the judgment of the Appellate

Division and remand the matter for resentencing.

I.

A.

On December 10, 2003, defendant sold three bags of crack

cocaine to a Pine Hill undercover officer. A subsequent

investigation revealed defendant was selling drugs from his

apartment. On January 16, 2004, a search warrant was executed

on defendant’s apartment.1 Police found $4,124 in United States

currency, a paper ledger, a scale, and clear plastic bags

containing a rock-like substance.

Defendant was indicted for third-degree possession of CDS

with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count one);

1
Defendant moved to suppress the fruits of this search, arguing
there was insufficient probable cause to support the issuance of
the search warrant and the police had failed to knock and
announce their presence. This Court held that the twenty- to
thirty-second delay between a detective knocking and announcing
the presence of the police to execute a search warrant and
conducting a forcible entry was reasonable and reinstated
defendant’s conviction. Robinson, supra, 200 N.J. at 18.
4
second-degree possession of CDS with intent to distribute within

500 feet of public property, N.J.S.A. 2C:35-7.1 (count two);

third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count

three); and third-degree possession of CDS with intent to

distribute, N.J.S.A. 2C:35-5(b)(3) (count four). Counts one and

two of the indictment arose from the December 10 transaction and

counts three and four stemmed from the January 16 search of

defendant’s apartment. A jury convicted defendant on all

counts.

Defendant had a lengthy criminal history. Prior to the

current conviction, defendant had a 1994 conviction of

distribution of CDS in a school zone; a 2000 conviction for

receiving stolen property, eluding a police officer, and

burglary; and a 2002 conviction for criminal restraint exposing

another to serious bodily injury.2

At the time of his sentencing hearing, defendant was

serving a three-year prison term with eighteen months of parole

ineligibility for the 2002 criminal restraint conviction. At

the sentencing hearing, the State moved for a mandatory extended

term as a result of the 1994 conviction. The trial court

determined that the law permitted imposition of two mandatory

repeat drug offender extended terms. The trial court also found

2
Defendant’s pre-sentencing report listed eight municipal court
convictions, one of which was for possession of CDS.
5
the following aggravating factors applied: the risk defendant

might commit another crime, N.J.S.A. 2C:44-1(a)(3); the extent

of defendant’s previous criminal record and serious offenses of

which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the

need to deter defendant and others from violating the law,

N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.

The trial court merged count one into count two, and count

three into count four. The court sentenced defendant to two

mandatory extended terms pursuant to N.J.S.A. 2C:43-6(f), “as a

subsequent drug offender.” On count two, possession of CDS with

intent to distribute within 500 feet of public property, the

court sentenced defendant to a mandatory extended term of

fifteen years’ imprisonment subject to a five-year period of

parole ineligibility. On count four, possession of CDS with

intent to distribute, the trial court sentenced defendant to a

concurrent mandatory extended seven-year term of imprisonment

subject to a three-year period of parole ineligibility. The

trial court directed that these terms were to be served

consecutively to the term he was serving on the 2002 conviction.

Defendant appealed, and following reinstatement of

defendant’s conviction and sentence by this Court, Robinson,

supra, 200 N.J. at 22, defendant moved in the trial court for a

reduction of sentence. Defendant argued that he was sentenced

erroneously to more than one extended term contrary to N.J.S.A.

6
2C:44-5(a)(2). The State conceded that distribution of CDS

within 500 feet of public property is not a predicate offense

for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f).3

Treating defendant’s motion as one to correct an illegal

sentence, Rule 3:22-12(a), the trial court determined that

defendant qualified as a persistent offender pursuant to

N.J.S.A. 2C:44-3(a) and imposed a discretionary persistent

offender extended term on count two of fifteen years’

imprisonment subject to a five-year period of parole

ineligibility. The mandatory extended term on count four

remained unchanged. The aggregate sentence also remained the

same: fifteen years in prison subject to a five-year period of

parole ineligibility.

B.

Defendant appealed. Defendant argued that the revised

sentence was illegal because it violated the statutory bar on

imposition of multiple extended terms. N.J.S.A. 2C:44-5(a)(2).

Defendant acknowledged that the mandatory extended term on count

four is legal. He argued, however, that the discretionary

extended term on count two is illegal pursuant to the plain

language of N.J.S.A. 2C:44-5. Defendant maintained that the

maximum sentence that could have been imposed on count two was

3
State v. Kashif Patterson, ___ N.J. Super. ___, ___ (App. Div.
2014) appears to be the first published opinion to confirm this
rule.
7
ten years. He also contended that the trial court failed to

make any findings of fact to permit a parole ineligibility term

on count two. In an unpublished order, the Appellate Division

affirmed defendant’s sentence. The panel concluded that State

v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999) governed

the imposition of extended terms and found that the “N.J.S.A.

2C:44-5(a)(2) prohibition of more than one extended term ‘[w]hen

multiple sentences of imprisonment are imposed on a defendant

for more than one offense,’ does not apply to mandatory extended

terms. It clearly governs the imposition of discretionary

extended terms.”

This Court granted defendant’s petition for certification.

212 N.J. 455 (2012).

II.

A.

Defendant contends that his sentence is illegal because the

plain language of N.J.S.A. 2C:44-5(a)(2) bars the imposition of

a discretionary extended term on count two, because he was

subject to a mandatory extended term on count four. He contends

that the plain language of the statute precludes imposition of

more than one extended term unless a specific statute overrides

the general bar.

Defendant relies on Hudson, supra, 209 N.J. 513. He

interprets Hudson to hold that N.J.S.A. 2C:44-5(a)(2) prohibits

8
“‘more than one sentence for an extended term’ when sentencing a

defendant for more than one offense.” Id. at 530 (quoting

N.J.S.A. 2C:44-5(a)(2)). He argues that the only exceptions to

this rule are the mandatory terms prescribed by N.J.S.A. 2C:43-

6(f) that override the more general sentencing provisions

contained in N.J.S.A. 2C:44-5(a)(2). Hudson, supra, 209 N.J. at

526; Singleton, supra, 326 N.J. Super. at 355. Defendant

asserts that because distribution of CDS within 500 feet of

public property is not a predicate offense for a mandatory

extended term pursuant to N.J.S.A. 2C:43-6(f), the prohibition

in N.J.S.A. 2C:44-5(a)(2) against multiple extended terms

controls.

Defendant contends the Appellate Division misread Singleton

and Connell to allow both a discretionary and mandatory extended

term because those cases addressed only the legality of multiple

mandatory extended terms. Defendant asserts that neither court

contemplated whether the sentencing judge can impose a

discretionary and a mandatory extended term in the same

sentence.

B.

The State maintains the Appellate Division correctly

affirmed defendant’s sentence because N.J.S.A. 2C:44-5(a)(2)

prohibits only more than one discretionary extended term, not a

mandatory and a discretionary extended term paired together.

9
Therefore, the sentence fashioned by the trial court was not

prohibited because only one discretionary term was imposed.

Examining the legislative intent of the statute, the State

asserts that the Legislature contemplated only a bar on multiple

discretionary extended terms because the Code of Criminal

Justice (Code), when enacted in 1978, did not include mandatory

extended term sentences. Further, the Model Penal Code (MPC) at

the time of enactment did not include any type of mandatory

extended term sentences.

The State emphasizes the practical effect of the rule

advocated by defendant. It contends that defendant’s position

permits a less serious offense subject to a mandatory extended

term to control the sentence fashioned by the trial court. The

State urges that the Legislature could not have intended this

result when it enacted mandatory extended terms. Furthermore,

the State, relying on Thomas, supra, 195 N.J. at 436, maintains

that if the Court accepts defendant’s position that a mandatory

and a discretionary extended term may not be imposed as part of

a single sentence, then the prosecutor is entitled to forego the

mandatory extended term on the less serious offense and to seek

a discretionary extended term on the more serious offense.

III.

A.

10
 Appellate review of a sentence is generally guided by the

abuse of discretion standard. State v. Roth, 95 N.J. 334, 364-

65 (1984); accord State v. Blackmon, 202 N.J. 283, 297 (2010).

The first prong of this four-prong analysis concerns whether the

sentence imposed violates sentencing guidelines and legislative

policies. Roth, supra, 95 N.J. at 364. This inquiry is a

question of law which is reviewed de novo. State v. Gandhi, 201

N.J. 161, 176 (2010). Thus, the interpretation and application

of N.J.S.A. 2C:44-5(a)(2) presents an issue of law that we

review de novo. Hudson, supra, 209 N.J. at 529.

B.

The objective of statutory interpretation is to effectuate

the intent of the Legislature. State v. Rangel, 213 N.J. 500,

508-09 (2013). As the Court stated in Hudson, supra, in its

recent analysis of N.J.S.A. 2C:44-5

[w]ell-known principles of statutory
construction guide the analysis of N.J.S.A.
2C:44-5. The overriding goal is to
determine as best we can the intent of the
Legislature, and to give effect to that
intent. See State v. Shelley, 205 N.J. 320,
323 (2011); DiProspero v. Penn, 183 N.J.
477, 492 (2005). To accomplish that end, we
adhere to the belief that “the best
indicator of . . . [legislative] intent is
the plain language chosen by the
Legislature.” Gandhi, supra, 201 N.J. at
176 (citing DiProspero, supra, 183 N.J. at
492).

[209 N.J. at 529.]

11
If the plain language chosen by the Legislature “leads to a

clearly understood result” that is consistent with the

legislative objectives of the statute and its context with

related provisions, we apply the law as written. Ibid.; Rangel,

supra, 213 N.J. at 509. Other tools for statutory construction

and extrinsic aids will be consulted “when the statutory

language results in more than one reasonable interpretation.”

Hudson, supra, 209 N.J. at 529.

This appeal requires the Court to consider the application

of N.J.S.A. 2C:44-5(a)(2) to a defendant, whose present

conviction and criminal history qualify him for imposition of a

discretionary extended term as a persistent offender pursuant to

N.J.S.A. 2C:44-3(a), and a mandatory extended term pursuant to

N.J.S.A. 2C:43-6(f). N.J.S.A. 2C:44-5(a)(2) provides:

When multiple sentences of imprisonment are
imposed on a defendant for more than one
offense . . . such multiple sentences shall
run concurrently or consecutively as the
court determines at the time of sentence,
except that:

. . . .

(2) Not more than one sentence for an
extended term shall be imposed.

Section 5(b) addresses sentences of imprisonment imposed at

different times. See Hudson, supra, 209 N.J. at 531.

Examining the plain language of the statute as we must,

Gandhi, supra, 201 N.J. at 176, it is apparent that section

12
5(a)(2) directly and unambiguously addresses the situation

presented in this appeal. Notably, we do not write on a clean

slate in addressing this issue. In Hudson, supra, which

addressed the imposition of multiple extended terms at different

times, the Court reviewed the language of subsection (a) and

stated that

[N.J.S.A. 2C:44-5(a)(2)] addresses the
sentencing of a defendant on multiple
offenses in a single sentencing proceeding,
and states, with unmistakable clarity, that
there shall be imposed “not more than one
sentence for an extended term” when
sentencing a defendant for more than one
offense.

[209 N.J. at 530.]

Admittedly, the Court’s discussion of subsection (a) may be

considered dicta, as that subsection of the statute was not the

focus of the opinion. Nevertheless, there is nothing in the

language used by the Legislature that creates any ambiguity.

Rather, N.J.S.A. 2C:44-5(a)(2) expressly and unequivocally

states that no more than one extended term sentence may be

imposed in a single sentencing proceeding. Furthermore, we

discern no basis to depart from our previously expressed

determination in Hudson that the prohibition against the

imposition of multiple extended terms in a single sentence has

been expressed with “unmistakable clarity.”

13
 Nevertheless, we consider whether this interpretation is

consistent with the legislative objectives of the statute and

its context with related provisions. We commence this

discussion by examining the derivation of the statute.

N.J.S.A. 2C:44-5, entitled “Multiple sentences; concurrent

and consecutive terms,” guides trial court judges in multiple-

sentence circumstances. Hudson, supra, 209 N.J. at 527.

N.J.S.A. 2C:44-5(a) was enacted in 1978, based on MPC Section

7.06. Cannel, New Jersey Criminal Code Annotated, comment 1 on

N.J.S.A. 2C:44-5 (2013); N.J.S.A. 2C:44-5 (Historical and

Statutory Notes). The language of section 5(a) has remained

essentially unchanged since it was originally enacted in 1978.

See L. 1978, c. 95; Cannell, supra, comment 1 on N.J.S.A. 2C:44-

5(a).

When a provision of the Code is modeled after the MPC, it

is appropriate to consider the MPC and any commentary to

interpret the intent of the statutory language.4 State v. D.A.,

191 N.J. 158, 167 (2007). Section 7.06(1) of the MPC bars the

imposition of multiple extended terms in a single sentencing

proceeding. Section 7.06(1)(d) provides “not more than one

4
The New Jersey Criminal Law Revision Commission’s commentary on
this section provides little guidance. See II Final Report of
the New Jersey Criminal Law Revision Commission, commentary to §
2C:44-5, at 335 (1971).

14
sentence for an extended term shall be imposed.” Model Penal

Code and Commentaries, § 7.06(1)(d) (1962).

The MPC Commentaries provide some guidance on the authority

to impose multiple extended terms. Generally, the MPC

Commentaries observe that ordinary terms and certain enhanced

terms should be adequate to address the multiple offender. It

states, “limits that are set for a given offense as appropriate

for imposition on the persistent offender, the professional

criminal, and the dangerous, abnormal offender . . . should be

more than adequate in severity for the multiple offender.”

Model Penal Code and Commentaries, supra, comment 2 on § 7.06.

Furthermore, “[t]here is ample flexibility within the extended

term maximum to achieve the additional deterrence that may be

sought by imposing consecutive sentences for separate offenses,

and any proper preventive or incapacitative objective should

also be met by the maximum thus set.” Ibid.

New Jersey’s Code “provides for ordinary sentences,

N.J.S.A. 2C:43-6(a), as well as extended-term sentences that

carry greater punishment for the same crime.” Pierce, supra,

188 N.J. at 161 (citing N.J.S.A. 2C:43-6(c), 2C:43-6(f), 2C:43-

7, 2C:44-3). N.J.S.A. 2C:44-3, which addresses discretionary

extended terms, presents the sentencing judge with an option,

upon the prosecution’s request, to “impose a longer prison

sentence than is ordinarily available.” Connell, supra, 208

15
N.J. Super. at 691. In relevant part, N.J.S.A. 2C:44-3

provides, “[t]he court may, upon application of the prosecuting

attorney, sentence a person who has been convicted of a crime of

the first, second or third degree to an extended term of

imprisonment if it finds one or more of the grounds specified in

subsection a., b., c., or f. of this section.” Subsections (a),

(b), (c), and (f) present situations in which discretionary

terms “may be imposed in the exercise of sound judicial

discretion where the defendant is a persistent offender, a

professional criminal or a party to a crime committed for hire.”

Connell, supra, 208 N.J. Super. at 691 (citing N.J.S.A. 2C:44-

3(a)–(c)).

By contrast, some extended prison term sentences “are

mandatory, subjecting the defendant to an extended-term sentence

when the court finds certain facts, conditions, or circumstances

to exist” while “others confer discretion on the sentencing

court.” Pierce, supra, 188 N.J. at 161. “The Graves Act

provides that anyone who uses or possesses a firearm while

committing, attempting to commit, or fleeing after the

commission of certain designated crimes shall be sentenced to

prison for a mandatory minimum term prescribed by the Act.”

State v. Stewart, 96 N.J. 596, 601 (1984). Under the

Comprehensive Drug Reform Act of 1987, extended terms for repeat

drug offenders were adopted in order to punish and deter serious

16
and dangerous offenders. State v. Kirk, 145 N.J. 159, 166-67

(1996). Thus, according to N.J.S.A. 2C:43-6(f), a person who

has been previously convicted of certain designated drug

offenses and who is convicted again of a designated drug offense

must receive an extended term of imprisonment if the prosecutor

requests such a sentence. See State v. Lagares, 127 N.J. 20, 31

(1992). The base term ranges from the minimum term of

imprisonment of the ordinary term for the offense to the top

maximum term of imprisonment of the extended term. Pierce,

supra, 188 N.J. at 169.

Barring more than one extended term when a judge is

fashioning a sentence for multiple offenses in a single

proceeding is also consistent with the general purposes of the

Code sentencing scheme. One of the general purposes, if not the

overarching purpose, of the Code provisions governing sentencing

of offenders is to promote uniformity of sentencing throughout

the State. State v. Brimage, 153 N.J. 1, 20 (1998); Lagares,

supra, 127 N.J. at 31; see also N.J.S.A. 2C:1-2(b)(4) (seeking

to avoid excessive, disproportionate, or arbitrary sentences).

As explained by Justice Garibaldi,

[t]o meet those goals, the Code offers
specific sentencing instruction to judges,
including detailed guidelines and rules. In
particular, the Code provides for a range of
permissible sentences for each degree of
crime, N.J.S.A. 2C:43-6(a); certain
mandatory minimum punishments, such as under

17
 the Graves Act, N.J.S.A. 2C:43-6(c); the
imposition of a mandatory extended term of
imprisonment for certain crimes within
specified permissible ranges, N.J.S.A.
2C:43-7(a); a presumption of imprisonment
for all first and second degree offenses,
N.J.S.A. 2C:44-1(d); a list of specific
aggravating and mitigating factors to be
considered in sentencing, N.J.S.A. 2C:44-
1(a), (b); a list of authorized sentencing
dispositions, N.J.S.A. 2C:43-2; and a list
of the grounds upon which a defendant must
be sentenced to a mandatory extended term,
N.J.S.A. 2C:44-3. While the Code still
affords discretion to individual judges in
deciding among different factors and
choosing a sentence within a permissible
range, that discretion is guided by specific
standards which apply on a uniform,
statewide basis.

[Brimage, supra, 153 N.J. at 20-21.]

As we observed in Hudson, supra,

[w]ith enactment of N.J.S.A. 2C:44-5, the
Legislature has woven a piece on how a
sentence should be configured for a
defendant confronted with the possibility of
serving multiple sentences. N.J.S.A. 2C:44-
5(a) instructs courts on how to sentence a
defendant with multiple offenses whose
sentences can combine and overlap. It
addresses the sentencing of a defendant on
multiple offenses in a single sentencing
proceeding, and states, with unmistakable
clarity, that there shall be imposed “not
more than one sentence for an extended term”
when sentencing a defendant for more than
one offense. N.J.S.A. 2C:44-5(a)(2).

[209 N.J. at 530.]

Thus, we conclude that the prohibition against multiple extended

terms directed by the plain language of subsection (a)(2) is

18
consistent not only with the overarching legislative objective

of promoting sentencing uniformity and predictability but also

consistent within the context of other provisions governing

extended term and mandatory minimum sentencing.

Nevertheless, the State contends that neither the language

of the statute nor the opinion expressed by this Court in Hudson

accounts for the situation in which one of the extended terms is

a mandatory extended term. In other words, the State contends

that the plain language of the statute permits the imposition of

a mandatory extended term and a discretionary persistent

offender extended term. We disagree.

We acknowledge that a canon of statutory construction

directs that a specific statute generally overrides a general

statute. See Trinity Cemetery Ass’n v. Twp. of Wall, 170 N.J.

39, 46 (2001). On this basis, the State argues that N.J.S.A.

2C:43-6(f), a specific statute requiring the imposition of

mandatory extended terms for certain repeat drug offenders,

overrides N.J.S.A. 2C:44-5(a)(2), a general provision governing

imposition of multiple extended terms. The flaw in the State’s

argument is the ability of the prosecutor to refrain from

requesting a court to impose any extended term, discretionary or

mandatory.

Although N.J.S.A. 2C:43-6(f) prescribes the imposition of

an extended term of imprisonment when a defendant has been

19
convicted previously of certain enumerated drug offenses, this

provision also permits the prosecutor to waive such enhancement

by declining to request imposition of the extended term. As

noted, if the prosecutor requests the imposition of an extended

term, and the defendant meets the conditions prescribed by the

statute, the sentencing court must impose an extended term.

Lagares, supra, 127 N.J. at 31. On the other hand, if the

prosecutor does not request imposition of a mandatory term, the

sentencing judge must impose an ordinary term of imprisonment.

Ibid. This extraordinary arrangement bestowed on the prosecutor

by the Legislature to determine whether a defendant shall be

subject to a greater or lesser term of imprisonment, ibid., also

permits the State to comply with the unambiguous legislative

direction of N.J.S.A. 2C:44-5(a)(2) to restrict imposition of

multiple extended terms.

IV.

Simply stated, the sentence imposed on defendant is

illegal. N.J.S.A. 2C:44-5(a)(2) bars the imposition of a

discretionary extended term and a mandatory extended term in the

same sentencing proceeding. We must, therefore, address the

remedy to which defendant is entitled. Defendant urges that

this Court simply vacate the discretionary extended term and

remand for resentencing with instructions to impose an ordinary

term of imprisonment on count two and to maintain the mandatory

20
extended term of seven years’ imprisonment subject to a three-

year period of parole ineligibility on count four.

The State argues that a new sentencing hearing should be

conducted guided by the law outlined in this opinion. It

maintains that the sentencing court fashioned an entire sentence

based on a misapprehension of the law. Under those

circumstances, the State urges that the prosecutor should have

the discretion to decide which count should bear the extended

term. In other words, the prosecutor should have the

opportunity to invoke his discretion to waive the imposition of

a mandatory extended term on count four and to elect to request

a discretionary extended term on count two based on defendant’s

status as a persistent offender.5

This Court recently observed that remands for resentencing

“cover a range of proceedings, from vacated sentences which

require sentencing anew to mere corrections of technical

errors.” State v. Randolph, 210 N.J. 330, 350 (2012). We also

commended the approach adopted by State v. Towey, 244 N.J.

Super. 582, 594 (App. Div.), certif. denied, 122 N.J. 159 (1990)

and State v. Tavares, 286 N.J. Super. 610, 616 (App. Div.),

certif. denied, 144 N.J. 376 (1996), which directs that

5
If the State elects to pursue a discretionary extended term
sentence, it may reserve the right to request a mandatory
extended term in the event that the trial court denies the
State’s application for imposition of the discretionary extended
term.
21
judgments ordering reconsideration of sentence require a court

to conduct a new sentencing proceeding. Randolph, supra, 210

N.J. at 352. The Court noted that such an approach “encourages

more fulsome resentencing proceedings unless circumscribed by

the remanding appellate body’s delineation that a limited

proceeding is sufficient.” Ibid.

Our disposition requires vacation of defendant’s sentence

and that the matter be remanded for imposition of a new

sentence. This is not a remand simply to alter the judgment of

conviction to reflect merger of certain counts or for a

statement of reasons to support a consecutive term. Id. at 353.

The circumstances of this case require an entirely new

sentencing proceeding. On two occasions, defendant has faced a

court for sentencing. Twice, the sentencing court has imposed

an illegal sentence. Under those circumstances, it is

appropriate that the State, defendant, and the sentencing court

should approach this sentence anew. At the new sentencing

proceeding, the State may elect whether to seek an extended term

on count two or count four. The State must, of course, submit

its request for an extended term in writing, and if it elects to

seek the mandatory extended term on count four, it must also

express its reasons for doing so. Lagares, supra, 127 N.J. at

32.

22
 If the State elects to forego the mandatory extended term

on count four and to request a discretionary extended term on

count two, defendant may argue against the imposition of such a

term. Similarly, both parties may argue for or against the

imposition of consecutive terms and the trial court must

identify the appropriate aggravating and mitigating factors,

explain the reasons for imposition of any extended term of

imprisonment, and the reasons for imposing consecutive or

concurrent terms of imprisonment.

V.

In sum, we hold that N.J.S.A. 2C:44-5(a)(2) bars imposition

of a mandatory extended term and a discretionary extended term

in the same sentence. When a defendant is eligible for both

types of extended terms, the State may elect which type of

extended term it wishes to pursue. Finally, in this case, a new

sentencing proceeding must be conducted.

VI.

The judgment of the Appellate Division is reversed and the

matter is remanded for resentencing consistent with this

opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON join in JUDGE CUFF’s opinion. JUDGE RODRIGUEZ
(temporarily assigned) did not participate.

23
 SUPREME COURT OF NEW JERSEY

NO. A-20 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES W. ROBINSON,

Defendant-Appellant.

DECIDED June 5, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE/
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) ------------------------ ---------------------
JUDGE CUFF (t/a) X
TOTALS 5